IND/Over-representation in Custody and the History of Colonisation

Key Idea

Indigenous people have been severely disadvantaged in the Australian legal system since the first non-Indigenous settlement on their land.

Mounted police engaging Indigenous Australians during the Slaughterhouse Creek Massacre of 1838

The Commission found that Indigenous Australians are grossly over-represented in custody and that this fact is directly relative to the high number of Aboriginal deaths in custody. In other words, “too many Aboriginal people are in custody too often” (Johnston, 1991, Volume 1, 6). Aboriginal people have been found to be over-represented in custody in Australia “by at least a factor of ten” (Hogg, 2001, 356). Over-representation occurs in the prison and juvenile justice systems, as well as in police custody. Indigenous women are incarcerated at about 20 times the rate of non-Indigenous women (ibid, 356-357).

The Royal Commission found that Aboriginal people have been severely disadvantaged under the Australian legal system since 1788 and that a direct link exists between the contemporary over-representation of Aboriginal people in custody and the application of British law to the Australian continent and its Indigenous peoples.

As the Royal Commission suggests, “[t]he policeman was the right hand man of the authorities, the enforcer of the policies of control and supervision, often the taker of children, the rounder up of those accused of violating the rights of settlers” (Johnston, 1991, Volume 1, 10). Further, as the Commission suggests, the activities that “brought [police] into continuous and hostile conflict with Aboriginal people” in the past reverberate in the present in the form of negative Aboriginal-police relations, the over-representation of Aboriginal people in custody and over-policing of Aboriginal communities (Johnston, 1991, Volume 1, 10).

Hogg (2001) suggests that it is not just the overt violence of the frontier period but also the segregation of Indigenous people onto reserves and missions, and the measures of control that Indigenous people were subjected to, as well as the surveillance and control outside of these reserves, which creates the climate for contemporary relations between Indigenous people and the criminal justice system (pp. 361-364).

Required Reading

Mitchell, J. & Curthoys, A. (2015). How different was Victoria? Aboriginal ‘protection’ in a comparative context. In L. Boucher & L. Russell (eds.). Settler Colonial Governance in Nineteenth century Victoria. Pp. 183-202.

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